On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-11-2017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
Tried by a jury, defendant Carlos Navarro was convicted of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1).*fn1 Defendant was sentenced to ten years' imprisonment subject to five years of parole ineligibility and assessed appropriate fines and penalties. Defendant appeals and we affirm, except we remand for reconsideration of the length of the parole ineligibility term.
On September 2, 2008, a customs and border patrol agent at JFK Airport inspected a package originating from Peru addressed to Carlos Navarro at 25 Wilkinson Terrace, Second Floor, Kearny, New Jersey. The package, shipped by a carrier known as "EMS Serpost," had a tracking number of "EE005716565PE." After x-rays disclosed items in the box having irregular density, it was opened, and found to contain a t-shirt, documents, and two wooden statues. The bases were removed from the statues, inside of which were plastic bags filled with cocaine, 571 grams in one and 371 grams in the other. The package was then given to Hudson County Detective Bobby Crudele for further investigation.
Crudele and Brian Wittig, a United States Postal Service Inspector, arranged a controlled delivery of the package. The first attempt failed, but a note was left for defendant about the failed delivery attempt.
On September 5, 2008, during the second attempt, Wittig, dressed as a postal worker, entered defendant's apartment building and saw that the "front door leading into the vestibule was propped open." A note had been placed on the apartment door, stating "the doorbell was broken, please knock." Wittig knocked, and defendant came "clamoring [sic] down the stairs." When Wittig told him he had a package for Carlos Navarro at that address, "[h]e responded yes." Defendant signed the slip acknowledging receipt, and printed his name below his signature. Wittig handed the package over and left. As he was leaving, he "heard the sound of a paper being ripped, being crumbled [sic] down." He then looked back and saw that the note on defendant's apartment door had been torn off.
Crudele and his team waited a few minutes and then entered the premises. After arresting defendant, who identified himself as being from Peru, Crudele found another person in the kitchen, Jorge Luis Vega. Vega claimed to have been present in the apartment because he was having marital difficulties and was hoping to be able to stay there temporarily. At trial, Vega testified that he and defendant worked together and had socialized together.
The package was located on a window sill in the "front bedroom/living room" area. Pay stubs and other items bearing defendant's name were stacked on top of the dresser in that room. The package had been opened and the statues removed. One lay in a horizontal position, and the other was propped up. The cocaine brick was partially visible inside the statue that was propped up.
Crudele accompanied defendant to the Hudson County Prosecutor's Task Force Office to be interviewed. While waiting, defendant pulled out a piece of paper the approximate size of a "post-it" and put it in his mouth. Crudele grabbed defendant, put his finger in defendant's mouth, and fished out the paper, a delivery slip bearing the EMS Serpost serial number from Peru. When Crudele asked defendant why he had tried to swallow the slip, defendant responded that he thought the paper was gum.
At trial, defendant testified in his own behalf. He said the morning of the arrest, Vega called and asked to meet him in the apartment, and accompanied him on a trip to the post office. Defendant said he went to the post office because he was expecting to pick up a package concerning his divorce. At the post office, he claimed he was advised the package was already on the truck and left his phone number with the person at the counter. Defendant also claimed to have subsequently received a phone call that the package would be delivered between 11:00 a.m. and 12:00 p.m., so he and Vega returned to his apartment, and a sheriff delivered a "paper" concerning his divorce. Soon after, he heard a knock on the door and was given the package containing the statues. He signed for it and opened it. Defendant agreed it contained statues and a t-shirt, but said the birth certificates were in the name of a different person, "Carlos Alberto Navarro[,]" while his name was "Carlos Enrique Navarro Terveno." In addition to the name difference, defendant said he was not born in Lima, the birth certificates' point of origin. Although defendant acknowledged opening the package, he said that Vega immediately took it from him, that he did not even touch the statues, and that he knew nothing about the package.
When asked to explain his conduct in trying to swallow the tracking slip, defendant stated he did not know whether it had been given to him by Vega or by the post office. He said he put it in his mouth "[b]ecause I ha[d] the need, I don't know, my mouth was dry[,]" and denied trying to swallow it.
On appeal, defendant through counsel raises the following issues:
THE STATE COMMITTED REVERSIBLE MISCONDUCT BY COMMENTING IN SUMMATION ON THE DEFENDANT'S SILENCE. U.S. CONST., ...